IN THE TITLE IV DISCIPLINARY MATTER
INVOLVING THE
RT. REV. WILLIAM H. LOVE, RESPONDENT
DECISION OF THE HEARING PANEL ON
CROSS-MOTIONS FOR SUMMARY JUDGMENT
NATURE OF THE CASE
This case involves the action of the Right Reverend William H. Love (“Bishop
Love”) in his issuance of a November 10, 2018 Pastoral Direction (“Direction”) to
all Diocesan clergy in the Diocese of Albany: a) prohibiting them from conducting
marriage rites for same-sex couples as authorized by the 79th Convention of the
Episcopal Church and; b) requiring compliance with Albany Diocesan Canon 16 that
prohibits such marriage rites and blessings. The Episcopal Church (“TEC”) contends
the action of Bishop Love in executing such a Direction violates the Disciplinary
Canons of TEC in that his action constitutes a failure to abide by promises and vows
made when ordained pursuant to Canon IV.4.1(c).
2
The matter comes before this Hearing Panel for the Trial of a Bishop (“the
Hearing Panel”) in the form of cross-motions by TEC and Bishop Love for summary
judgment. Both sides have stipulated to undisputed facts and both parties have
requested the Panel to reach a decision without requiring the testimony of fact
witnesses.
What is not before the Hearing Panel is the discretion of any clergy to refuse
to perform any rites of marriage as requested by any couple seeking such a rite. That
right remains resolute. Nor does this seek to limit a bishop’s jurisdiction over the use
of liturgies as outlined in the canons.
TEC asserts that Bishop Love violated promises made when he was ordained
in that by issuing the Direction he violated: a) the Discipline and Worship of the
Church as mandated by 2018 Resolution B012; b) the Discipline and Worship of the
Church as mandated by Canon 1.18.
First, Bishop Love asserts that 2018 Resolution B012 lacks canonical import
in that it was not a properly constituted revision to the Book of Common Prayer
(“BCP”). Second, he asserts compliance with the Resolution would require him to
violate the Doctrine and Discipline of the Church where: a) such Doctrine and
Discipline prohibit same sex-marriage rites and; b) Church canons require
conformity to the: i) Rubrics of the BCP; ii) Doctrine of the Church; and iii)
Diocesan Canons of the Church. Third, he argues that Canon 1.18 is permissive and
3
not mandatory. Finally, he argues he did not violate the Worship of the Church
because the form of worship that Resolution B012 sought to authorize was extra-
canonical in that the resolution was not a properly constituted revision to the BCP.
SUMMARY OF OPINION
This Panel unanimously concludes that TEC has met its burden of showing,
by clear and convincing evidence, that Bishop Love has violated Canon IV.4.1(c) in
that his November 10, 2015 Pastoral Directive violated the Discipline of the Church,
as Resolution B012 was properly constituted and passed as an authorized revision to
the BCP as expressly provided for in Constitution Article X (b), thus requiring that
all Bishop Diocesans permit their clergy the option to utilize such rites. TEC has
further met its burden of establishing that Bishop Love’s Direction also violated the
Discipline of the Church in that it violated Canon I.18. The canonical legitimacy of
Resolution B012 rendered Canon I.18 mandatory, requiring adherence by Bishops
Diocesan in permitting their Clergy the option to perform same-sex marriage rites.
TEC has also met its burden of establishing that the Direction violated the Worship
of the Church in that Resolution B012 added canonically-authorized same-sex
marriage rites to the Worship of the Church pursuant to the BCP. Therefore, Bishop
Love’s argument that abiding by Resolution B012 would put him in violation of the
Discipline, Doctrine and Worship of the Church fails in each assertion. Resolution
B012 effectively added rites of worship to which paragraph one of “Concerning the
4
Service” regarding “The Celebration and Blessing of a Marriage” and “The Blessing
of a Civil Marriage” (“commentary to Concerning the Service”) at 422 of the BCP,
describing marriage “as between a man and a woman,” does not apply. Second,
Resolution B012 does not create a conflict between the Discipline and Doctrine of
the Church where a portion of the Catechism, BCP at 861 refers to marriage in which
“the man and a woman enter into a life-long union. . .”. The Rubrics to the
Catechism make plain it is merely “an outline for instruction” and is “not meant to
be a complete statement of belief and practice.” BCP at 844. Nor can Bishop Love
defend his actions under the Albany Canons where Resolution B012 was canonically
authorized and TEC’s accession clause provides that diocesan canons must accede
to TEC canons. Finally, Bishop Love’s defense that he cannot violate the Worship
of the Church where Resolution B012 was extra-canonical, fails because Resolution
B012 was properly constituted to render marriage rites as canonically authorized
revisions to the BCP.
HISTORY OF THE CASE
The Church Attorney, Mr. Paul Cooney, Esq., submitted this case to the
Hearing Panel by way of a Statement of Alleged Offense dated September 27, 2019.
A Notice of Hearing Panel and the Statement of Alleged Offense pursuant to
Canon IV.13.2(a) was issued by Hearing Panel convener, Bishop Nicholas Knisely,
on October 4, 2019.
5
A response to the Statement of Alleged Offense, pursuant to Canon IV.13.2
(c) was provided to the Hearing Panel by Respondent’s counsel, Fr. William E.
Strickland, Jr., Esq., on October 24, 2019. Respondent denied the alleged offense.
On November 4, 2019, counsel for TEC and Respondent Love requested that
the Hearing Panel allow the parties to: a) proceed directly to summary judgment to
determine if General Convention Resolution B012 was binding on Bishop Love and;
b) to stay mandatory disclosures and all other discovery allowed under Canon
IV.13.5. The Hearing Panel convened on November 14, 2019 and denied the request
to stay mandatory disclosures and adjourned the decision on the request to proceed
by way of summary judgment until after the required Scheduling Conference. The
decision of the Hearing Panel was set forth in a November 26, 2019 Letter from
Bishop Knisely to counsel for both parties.
On December 6, 2019, the Hearing Panel, via a letter to the Church Attorney
and Respondent’s counsel, set the date for the parties to exchange Mandatory
Disclosures and made inquiry of both parties for available dates for the Scheduling
Conference.
Mandatory Disclosures were exchanged between the parties on December 20,
2019 and the Scheduling Conference was noticed for January 2, 2020.
On December 23, 2019, the parties proposed a Joint Scheduling Order to the
Hearing Panel. A Scheduling Conference under Canon IV.13.5(c) was held on
6
January 2, 2020 and, on January 15, 2020, the Hearing Panel entered an Order setting
a briefing schedule for the cross-motions for summary judgment. The Order further
set the date of April 21, 2020 for oral argument on the summary judgment motions.
On March 27, 2020, the Hearing Panel adjourned the date for oral argument
on the summary judgment motions that was to take place at a physical location in
Albany, New York. The adjournment was due to the COVID-19 pandemic. Upon
the consent of both parties, the oral argument was adjourned until June 21, 2020 and
the location and format of the oral argument was changed from a one where the
parties would be physically present to a remote hearing that would be live-streamed
allowing the public to remotely view the proceedings.
The Hearing took place as scheduled on June 21, 2020.
Upon consent, the Hearing Panel reserved decision on the motions.
Subsequent to the oral argument, on June 26, 2020, the Panel requested
additional supplemental materials from counsel for TEC, specifically, it requested
the following transcripts from the 2018 General Convention: a) the floor debate
during the final passage of Resolution B012; b) the floor debate in the House of
Bishops during the final passage of Resolution B012 that discussed prayer book
reform and; c) Bishop Love’s remarks given during the floor debate in the House of
Bishops on Resolution B012. At the time of the Panel’s request for further materials,
TEC objected to the consideration of any supplemental documents outside of those
7
that had been provided to the Panel in the parties’ briefs asserting that it could create
a factual dispute beyond the facts that had been stipulated to by the parties for
summary judgment purposes and; b) that General Convention transcripts might not
be the proper subject for “judicial notice” where any party’s statement may not be
subject to correction as is allowed for court-certified transcripts. In light of this,
TEC requested the opportunity for both parties to be heard should the Hearing Panel
decide to rely on any additional documents beyond those which had been submitted
by the parties.
On July 2, 2020, the Hearing Panel amended its request for all three
transcripts and requested just the transcript of Bishop Love’s statement made during
the floor debate on Resolution B012 in the House of Bishops. In rendering this
decision, the Hearing Panel has not relied upon the statement Bishop Love made
during the floor debate in the House of Bishops.
STIPULATED FACTS
Both parties have agreed to a set of undisputed facts. Both parties argue that
that these facts alone will provide a basis for the Hearing Panel to render a decision
about whether Bishop Love’s actions violated Canon IV.4.1(c).
1. Oath of Conformity
At the time of his ordination and consecration as bishop, Respondent
subscribed and made the following Declaration of Conformity in accordance with
8
Article VIII of the Constitution of the Episcopal Church: “I do believe the Holy
Scriptures of the Old and New Testaments to be the Word of God, and to contain all
things necessary to salvation; and I do solemnly engage to conform to the doctrine,
discipline, and worship of the Episcopal Church.” Joint Stipulation of Non-Disputed
Material Facts (“Joint Stipulation”) at para. 1.
2. The Passage and Content of Resolution B012
In 2018, the 79th General Convention of the Episcopal Church met in Austin,
Texas and on July 13, 2018, passed Resolution B012, entitled, “Authorize Trial
Liturgies for Same-Sex Marriage.”
i. Authorization of Four (4) Liturgical Rites for Same-Sex Marriage
The resolution sought to: (a) authorize for continued trial use two liturgies
for same-sex marriage first authorized for trial use in Resolution 2015-A054 adopted
by the 78th General Convention in 20151 and (b) authorize for trial use two
additional liturgies for same-sex marriage. (“Trial Use Liturgies”):
Resolved [1], the House of Deputies concurring, That the 79th General
Convention authorize for continued trial use, in accordance with Article
X of the Constitution and Canon II.3.6, “The Witnessing and Blessing
of a Marriage” and “The Celebration and Blessing of a Marriage 2” (as
appended to the report of the Task Force for the Study of Marriage to
the 79th General Convention); and be it further
1 The Joint Stipulation of Facts did not include the provision that the liturgies
referenced in Resolve 1 of B012 were the same liturgies as authorized by General
Convention Resolution B054 at the 78th General Convention. However, the Panel
takes judicial notice of this fact as specifically allowed by Canon IV.13.10 (b)(4).
This fact is only utilized in this Opinion for historical understanding and context.
9
Resolved [2], That the 79th General Convention authorize for trial use,
in accordance with Article X of the Constitution and Canon II.3.6, “The
Blessing of a Civil Marriage 2” and “An Order for Marriage 2” (as
appended to the report of the Task Force for the Study of Marriage to
the 79th General Convention), beginning the first Sunday of Advent,
2018. . .
Joint Stipulation at para. 2; Exhibit A to Common Exhibits to Joint Stipulation
of Non-Disputed Facts and Motion of Church for Summary Judgment (“Joint
Stipulation Exhibits”) at A-1.
ii. Designation of Time Frame for Trial Use
Resolves 1 and 2 of Resolution B012 also provide for the starting date for the
implementation of the Trial Use Liturgies. The two Liturgies passed in 2015 were
to continue from their prior start date and the two new liturgies were to start on the
first Sunday of Advent. Resolve 3 provides the end date for all four of the Trial Use
Liturgies as completion of the next comprehensive revision of the Book of Common
Prayer:
Resolved [3], That the period of trial use for these liturgies shall extend
until the completion of the next comprehensive revision of the Book of
Common Prayer . . .
Joint Stipulation at para. 2; Joint Stipulation Exhibits at A-1.
iii. The SCLM to Monitor the Trial Use as Part of Prayer Book Revision
The Resolution also provides for an interim General Convention body, the
Standing Committee on Liturgy and Music (“SCLM”) to monitor the use of the rites
as part of their work on revising the BCP:
10
Resolved [4], That the SCLM monitor the use of these rites as part of
their work of revising the Book of Common Prayer . . .
Joint Stipulation at para. 2; Joint Stipulation Exhibits at A-1.
iv. Consideration of Recommendations to Revisions to the BCP Commentary Concerning the Service, the Marriage Prefaces
and Catechism
The SCLM, during their work on revision of the BCP, is also charged by the
General Convention under Resolve 5 with considering certain material prepared by
an SCLM Task Force, the Task Force for the Study of Marriage, (“TFSM”) for
revision to sections of the BCP relating to marriage, specifically: a) commentary to
Concerning the Service; b) the proper prefaces for Marriage and; c) the Catechism:
Resolved [5], That the material prepared by the TFSM with regard to
paragraph one of “Concerning the Service” of Marriage, the proper
prefaces for Marriage and the Catechism be referred to the SCLM for
serious consideration as they engage in the process of revision of the
Book of Common Prayer . . .
Joint Stipulation at para. 2; Joint Stipulation Exhibits at A-1.
v. Providing for the Proper Publication of Rites
General Convention, through Resolve 6, provides for the necessary
publication of the Liturgical Rites by requiring that the material be “authorized for
publication as part of Liturgical Resources 2 (as appended to the report of the TFSM)
and that it be made electronically available in English, Spanish, French, and Haitian
Creole at no cost by the First Sunday of Advent, 2018. Resolve 15 also provides for
various Church leaders, including the Custodian of the Book of Common Prayer, to
11
finalize all such liturgies for publication as outlined in Resolve 6. Joint Stipulation
at para. 2; Joint Stipulation Exhibit at A-2.
vi. Preservation of All Canonical Rights of Clergy Relative to Marriage while Requiring Provision for Same-Sex Liturgies in
Local Congregations
Critically, in Resolve 7 and Resolve 9 of Resolution B012, in acknowledging
and affirming the authority of Clergy to conduct marriage rites or to refuse to
perform a marriage rite, the General Convention requires that Rectors or Clergy in
charge to make provision for same-sex couples, where civil law allows, to use the
liturgies in their local congregation or worshipping community:
Resolved [7], That under the canonical direction of the Rector or
Member of the Clergy in charge and where permitted to do so by civil
law, provision will be made for all couples desiring to use these
marriage liturgies in their local congregation or worshipping
community, provided that nothing in this Resolve narrows the authority
of the Rector or Priest-in-Charge (Canon III.9.6(a))
. . .
Resolved [9], That the provision of Canon I.18.7 applies by extension
to these liturgies, namely, “It shall be within the discretion of any
Member of the Clergy of this Church to decline to solemnize or bless
any marriage . . .
Joint Stipulation at para. 2; Joint Exhibits at A-1 and A-2.
12
vii. Allowing Accommodations for Bishops Opposed to Same-Sex Marriage by Requiring an Opposing Bishop to Invite
another Bishop to Provide the Necessary Pastoral Support
for Those Seeking Local Access to Same-Sex Marriage
Resolve 8 of the Resolution makes an accommodation for bishops
theologically opposed to same-sex marriage to have another bishop provide for the
pastoral needs of the same-sex couple, the congregation, and worshipping
community to carry out the intent of the resolution that all couples have local access
to such rites. Importantly, an accommodation is offered to diocesan bishops who
oppose same sex-marriage to invite another bishop into the diocese to provide
pastoral support for same-sex couples who seek to be able to utilize the rites in their
local congregation or worshipping community:
Resolved [8], That in dioceses where the bishop exercising
ecclesiastical authority (or, where applicable, ecclesiastical
supervision) holds a theological position that does not embrace
marriage for same-sex couples, and there is a desire to use such rites by
same-sex couples in a congregation or worshipping community, the
bishop exercising ecclesiastical authority (or ecclesiastical supervision)
shall invite, as necessary, another bishop of this Church to provide
pastoral support to the couple, the Member of the Clergy involved and
the congregation or worshipping community in order to fulfill the
intention of this resolution that all couples have convenient and
reasonable local congregational access to these rites . . .
Joint Stipulation at para. 2; Joint Exhibits at A-1.
13
viii. Parallel Provision for a Bishop Opposing Same-Sex Marriage to Provide for a Invited Outside Bishop to Provide Consent for
Remarriage after Divorce for those Seeking Same-Sex Marriage
Where one of the persons desiring to use the Authorized Marriage Rites
requires a bishop’s consent for remarriage after divorce, as required by Canon
I.19.3(c), Resolve 11 of Resolution B012 requires the bishop not embracing
marriage for same-sex couples, to “invite another bishop of this Church to oversee
the consent process and to receive any report of such Marriages, as provided in
Canon I.19.3(c)”. Joint Stipulation at para. 2; Stipulated Exhibits at A-2.
ix. Bishops Required to Engage in Comprehensive Engagement with the Liturgies while providing a Generous Pastoral Response to All
as the Church continues to honor Theological Diversity
The resolution further requires bishops to continue the work of leading the
Church in comprehensive engagement with the authorized liturgical materials and
to continue to provide generous pastoral response to meet the needs of members of
this Church (Resolve 12). The resolution also requires the Church to “continue to
honor theological diversity in regard to matters of human sexuality”. (Resolve 13).
Joint Stipulation at para. 2; Stipulated Exhibits at A-2.
x. Recommendation for Allocation of Resources
Finally, the Resolution urges the Joint Standing Committee on Program,
Budget and Finance to allocate financial resources to accomplish the requirements
14
of the Resolution. (Resolve 14). Joint Stipulation at para. 2; Stipulated Exhibits at
A-2.
3. Excerpts from Correspondence between Albany Rector and Bishop Love
Subsequent to the 2018 General Convention, on or about July 14, 2018, The
Rev. Mary Robinson White, the Rector of St. Andrew’s, Albany, expressed her
intent to implement the provisions of Resolution B012 on the first Sunday of Advent
in 2018 (by its terms, the effective date of Resolution B012). Joint Stipulation at
para. 4, Stipulated Exhibits at C-1. The email to Bishop Love included the Rector’s
plan to implement the provisions of Resolution B012 beginning on the first Sunday
of Advent. She further requested if Bishop Love had specific protocols that he was
requiring Diocesan clergy to follow:
Welcome back from General Convention! I am writing to let you know
that I plan on implementing the provisions of B012 beginning the first
Sunday of Advent…I understand that requests for remarriage of same-
sex couples will go to Bishop DeDe [Bishop DeDe Duncan-Probe,
Diocese of Central New York, who provides episcopal oversight to St.
Andrew’s, by agreement]. Please let me know if there are other
protocols that I should follow.
Joint Stipulation at para. 4; Stipulated Exhibits at C-1.
Later that same day, Bishop Love replied, noting that the Diocese had not
worked out a plan for dealing with B012 and that the Albany Canons [that prohibited
same sex marriages and blessings] would remaining in effect pending such a
Diocesan plan:
15
Thank you for your email sharing your intentions. Please note that the
manner in which B012 is dealt with in the Diocese of Albany is still to
be worked out. In the meantime, the marriage canons of the Diocese of
Albany still apply to all parishes.
Joint Stipulation at para. 4; Stipulated Exhibits at C-2.
4. Bishop Love’s Pastoral Letter and Direction
On November 20, 2018, Bishop Love issued a Pastoral Letter and Direction
(“Pastoral Direction” or “Direction”) going to the heart of his decision to disregard
Resolution B012. The letter, in part, acknowledges the stated intent of Resolution
B012 “to mak[e] liturgies for same-sex marriages available for use in every Diocese
and parish of the Episcopal Church” (Stipulated Exhibits at B-3, para. 1) and to
mandate the adherence to its dictates.2 (Stipulated Exhibits at B-3, para. 3). Bishop
Love plainly states his intent to disregard the resolution:
I cannot in good conscience as a bishop in God’s holy Church agree to
what is being asked for in B012. While I respect the authority of the
General Convention as an institutional body, my ultimate loyalty as a
bishop in God’s Holy Church is to God.
Joint Stipulation at para. 3; Stipulated Exhibits at B-8.
The Pastoral Direction specifically seeks to preclude all Clergy in the Diocese
from performing same-sex liturgies:
2 Bishop Love’s letter concedes that the stated intent of B012 was to mandate
adherence by “attempting to order” (Stipulated Exhibits at B-2, para. 2); attempting
to “force” (Stipulated Exhibits at B-5, para. 1) and to “dictate[]” (Stipulated Exhibits
at B-2, last para.) compliance.
16
Therefore, for all the reasons mentioned in the above Pastoral Letter,
in my capacity as Bishop Diocesan -- pastor, teacher and overseer of
the Clergy of the Diocese, and pursuant to Canons III.9.6 and IV.7 of
the Constitution and Canons of The Episcopal Church, I hereby issue
the following Pastoral Direction to all the clergy canonically resident,
resident or licensed in the Episcopal Diocese of Albany:
Until further notice, the trial rites authorized by
Resolution B012 of the 79th General Convention of the
Episcopal Church shall not be used anywhere in the
Diocese of Albany by diocesan clergy (canonically
resident or licensed), and Diocesan Canon 16 shall be
fully complied with by all diocesan clergy and parishes.
Joint Stipulation para. 2, Stipulated Exhibit at B-8 para. 4, 5.
5. The Albany Canon prohibiting Same-Sex Marriage and Blessings
Canon XVI of the Canons of the Episcopal Diocese of Albany expressly
prohibits same-sex marriage and blessings from being performed by diocesan
clergy3 or from being performed in any property owned or utilized by the Diocese.4
Stipulated Facts, para. 5.
3 16.1 – Celebration or Blessing of Marriages by Clergy
Members of the Clergy Resident in or Licensed to Serve in this Diocese shall neither
officiate at, nor facilitate, nor participate in, any service, whether public or private,
for the Celebration or Blessing of a Marriage or any other union except between one
man and one woman. Unions other than those of one man and one woman in Holy
Matrimony, even if they be recognized in other jurisdictions, shall be neither
recognized nor blessed in this Diocese. 4 16.2 – Marriages on Church Property
Properties owned, controlled, managed, or operated by this Diocese, or any Parish
of the Diocese, or any legal entity established by the Diocese or a parish of the
Diocese, shall not be the site for any service, public or private, for the Celebration
or Blessing of a Marriage or any other union except those between one man and one
woman.
17
ARGUMENT
I. The Standard of Proof Upon a Summary Judgment Motion
In a secular civil court, the applicable standard to be applied by a court in a
summary judgment is whether undisputed material facts, when taken in a light most
favorable to the moving party, renders a decision to dismiss or grant judgment as a
matter of law. Said more simply, there is no weighing of credibility of witnesses or
any of the facts asserted through documentary evidence, because the facts are not
disputed. Herein, the question is: do the facts as stipulated by both parties lead to a
clear result based upon the plain language of the Oath of Conformity, the language
of Resolution B012, the email correspondence exchanged between Rev. White and
Bishop Love, the November 20, 2018 Direction of Bishop Love and the Albany
Marriage Canons, 16.2, 16.2?
In a disciplinary matter, our canons provide that the Respondent is presumed
to not have committed the offense (Canon IV.19.16) and the Church Attorney (be it
the TEC Church Attorney or a diocesan Church Attorney) must establish his or her
case by “clear and convincing evidence.” (Canon IV.19.16, 19.17). TEC argues that
this burden of proof does not apply in a summary judgment motion where the parties
have stipulated to facts, as there is no “evidence” to weigh. Bishop Love, on the
other hand, argues that there is still the burden of proof of “clear and convincing”
evidence that must be met by the Church Attorney in establishing each element of
18
the alleged offense for which the Respondent stands accused. The Panel agrees with
Bishop Love that the standard in “all matters under this this Title” is that “the burden
is on the Church through the Church Attorney to establish an Offense by a
Respondent” and that the burden is proof by “clear and convincing evidence.” Canon
IV.19.16, 19.17.
II. The Elements of the Alleged Offense
Respondent is charged with violating Canon IV.4.1(c), by failing to abide by
the promises and vows made when ordained. The Statement of Alleged Offense
specifically asserts that Respondent violated the Declaration he signed at his
ordination as bishop in which he promised to “conform to the doctrine, discipline,
and worship of the Episcopal Church.” Refining further the basis of the Charge in
the Statement of Alleged Offense, TEC’s Motion of the Church for Summary
Judgment and Brief in Support (“TEC’s Brief”) alleges that Respondent failed to
conform to the discipline and worship of the church. Id. at 17-18. TEC further alleges
that that Bishop Love’s Pastoral Direction violated his ordination vows by failing to
conform with Resolution B012, but also, by his alleged failure to conform to Canon
1.18. Thus, to meet its burden of proof on TEC’s first theory, it must show by clear
and convincing evidence that Bishop Love’s Pastoral Direction prohibiting clergy in
his Diocese from performing same-sex marriages violated Resolution B012 and
constituted a failure to conform to the Discipline and Worship of the Church. To
19
succeed on its second theory, TEC must show by clear and convincing evidence that
Bishop Love’s Pastoral Direction prohibiting clergy in his diocese from performing
same-sex marriages violated Canon 1.18 and constituted a failure to conform either
to the Discipline or the Worship of the Church.
III. Is the Action Alleged to be of “[M]aterial and [S]ubstantial” or of “[C]lear and [W]eighty Importance to the Ministry of the [C]hurch”?
Another element that is required for TEC to prove its case is that the offense
alleged is “material and substantial or of clear and weighty importance to the
ministry of the Church.” Canon IV.3.3. While, both parties have conceded that this
element has been met by the Church Attorney (TEC’s Brief at 19); Transcript of
Oral Argument at 79:02-145), the significance of Bishop Love’s action and its effect
on those seeking equal access to the ministries of the Church should not remain
unstated.
Depriving same sex couples of access to matrimony materially and substantially
impacts their spiritual, emotional and physical well-being as people of God. The
expression of love changes dramatically when it is recognized, welcomed and
witnessed. The loss of a public ceremony impacts the couple, the family and friends
and the community. The community, the Body of Christ, gathers together for a
5 Citations are to the transcript of oral arguments dated June 22, 2020 and are
referenced by “Tr.”, followed by the page(s) and line number(s) where the citation
appears.
20
shared experience. The language of parishes is one of family, shared enterprise,
support and commitment to each other. A marked shift in who can participate and
who cannot participate in the fullness of communal life leads to an identifiable shift
in power, belonging and value held by the members who can participate and those
who cannot. All of which leads to persistent stress and the impact of this: numbness,
resentment, low self-esteem, grief, loss of agency, shame and isolation.
IV. Resolution B012 as Permissive or Mandatory.
TEC argues that Resolution B012 set up a mandatory requirement that
dioceses and clergy offer same-sex marriages and that Bishop Love violated that
mandate. Bishop Love argues that the Resolution B012 lacked canonical import, as
it was not intended to offer proposed revisions to the BCP as required by Article X
and Canon II.3.6 because: a) it did not explicitly state it was a “proposed revision to
the BCP”; b) it lacked the essential components of specifying the duration of use
of the permitted rites and of direction as to the publication of the rites and; c) its
original drafters and other commentators, prior to its final passage, stated that it was
intended to be offered as additional rites and not as revisions to the BCP.
Both parties agree that TEC Constitution, Article X provides a canonical basis
for resolutions to be considered binding or mandatory when they are offered as
proposed revisions to the BCP:
The Book of Common Prayer, as now established or hereafter amended
by the authority of this Church, shall be in use in all the Dioceses of
21
this Church. No alternation thereof or additional thereto shall be made
unless the same shall be first proposed in one regular meeting of the
General Convention and by a resolve thereof be sent within six months
to the Secretary of the Convention of every Diocese, to be made known
to the Diocesan Convention at its next meeting, and be adopted by the
General Convection at is next succeeding regular meeting by a majority
of all Bishops, excluding retired Bishops not present, of the whole
number of Bishops entitled to vote in the House of Bishops and by a
vote by order in the House of Deputies in accordance with Article I,
Sec. 5, except that concurrence by the orders shall require the
affirmative vote in each order by a majority of the Dioceses entitled to
representation in the House of Deputies.
But notwithstanding anything herein above contained, the General
Convention may at any one meeting, by a majority of the whole number
of Bishops entitled to vote in the House of Bishops, and by a majority
of the Clerical and Lay Deputies of all the Dioceses entitled to
representation in the House of Deputies, voting by order as previously
set forth in this Article:
(a) Amend the Table of Lessons and all Tables and Rubrics related to the Psalms.
(b) Authorize for trial use throughout this Church, as an alternative at any time or times to the established Book of Common Prayer or to
any section or Office thereof, a proposed revision of the whole Book
or of any portion thereof, duly undertaken by the General
Convention.
And provided that nothing in this Article shall be construed as
restricting the authority of the Bishops of this Church to take such order
as may be permitted by the Rubrics of the Book of Common Prayer or
by the Canons of the General Convention for the use of special forms
of worship.
(Emphasis added). First, Article X, in its opening paragraph expressly mandates that
amendments to the BCP “shall be in use in all Dioceses of this Church.” Second,
while such amendments generally require votes at two consecutive General
22
Conventions, Article X(b) provides an exception to the general rule of requiring
votes at two consecutive conventions, if the amendment is authorized for trial use as
a proposed revision to the BCP that is authorized by the General Convention for trial
use. Under this exception, to be effective, the amendment requires only one vote of
the General Convention.
Canon II.3.6 provides further requirements for an amendment to the BCP that
is offered for trial use as a proposed revision. It requires that the enabling resolution
specify: a) the period of trial use; b) the precise text and; c) any special terms or
conditions under which the uses shall be carried out including translations:
Whenever the General Convention, pursuant to Article X of the
Constitution, shall authorize for trial use a proposed revision of the
Book of Common Prayer, or of a portion or portions thereof, the
enabling Resolution shall specify the period of such trial use, the
precise text thereof, and any special terms or conditions under which
such trial uses shall be carried out including translation.
As will be shown, Resolution B012 meets all of the criteria mentioned above. First,
the opening two resolves make plain that it is intended to authorize four liturgies for
“trial use” specifically under “Article 10” and “Canon II.3.6.”
Resolved [1], the House of Deputies concurring, That the 79th General
Convention authorize for continued trial use, in accordance with
Article X of the Constitution and Canon II.3.6, “The Witnessing and
Blessing of a Marriage” and “The Celebration and Blessing of a
Marriage 2” (as appended to the report of the Task Force for the Study
of Marriage to the 79th General Convention); and be it further
Resolved [2], That the 79th General Convention authorize for trial use,
in accordance with Article X of the Constitution and Canon II.3.6, “The
23
Blessing of a Civil Marriage 2” and “An Order for Marriage 2” (as
appended to the report of the Task Force for the Study of Marriage to
the 79th General Convention), beginning the first Sunday of Advent,
2018;
(emphasis added).
The intent of General Convention must be gleaned from the plain language of
the resolution.6 The Convention’s use of the words “authorize for trial use in
accordance with Article X and II.3.6” only refers to proposed revisions to the BCP
under Constitution Article X(b). Bishop Love’s argument that the resolution needed
to include the magic words “proposed revision to the Book of Common Prayers.”
lacks merit. Article X and II.3.6, when invoked, by their terms, are utilized when
one is seeking a proposed revision to the BCP.
As TEC asserts in its Reply Brief at 3, over the last forty years since the
adoption of the 1979 Prayer Book, General Convention has adopted a large number
6 There is a concept in secular law that is utilized by courts to aid in the construction
or interpretation of legislative statutes. First, courts are obliged to give words of the
statute their plain and ordinary meaning. If there is no ambiguity, the court need
look no further and is charged with enforcing the statute as written. While this Panel
is ecclesiastical in nature and is not bound by the rules of a secular court, given that
our governance arises from legislative acts of our General Convention, secular
principles provide some guidance. As the Supreme Court of the United States, in
describing the principle of statutory construction, noted: "[I]n interpreting a statute
a court should always turn to one cardinal canon before all others. . . .[C]ourts must
presume that a legislature says in a statute what it means and means in a statute what
it says there." Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992). Indeed,
"when the words of a statute are unambiguous, then, this first canon is also the last:
'judicial inquiry is complete.'" Id.
24
of liturgical texts for use in worship that were not approved pursuant to Article X,
including the various COCU liturgies (1980s), Lesser Feast & Fasts and its successor
volumes to liturgies in the Enriching our Worship Series and the liturgy for the
blessing of same-sex relationships (2012). General Convention plainly recognizes
the difference between liturgical forms authorized under Article X and those that are
not.
Additionally, General Convention is also familiar with the practice of
authorizing liturgies for trial use in conjunction with an anticipated comprehensive
revision of the Prayer Book as reflected in the practice used in the Church during the
last such effort that took place between 1964-1979. The Constitutional concept of
authorized “trial rites” became a part of the Constitution in 1964. A succession of
trial rites, including Liturgy of the Lord’s Supper (1967), Services for Trial Use
(1970), Authorized Services (1973) preceded the Draft Proposed Book of Common
Prayer (1976) that preceded the adoption of the 1979 Prayer Book. (TEC’s Reply
Brief at 5, n. 3)
Even though this Panel need go no further, the intent of the General
Convention in passing Resolution B012 is further evinced by the careful adherence
to every element within the mandates of Canon II.3.6. The resolution makes
provision for the time frame for the use of the liturgies: a) for the two trial liturgies
whose use had begun after the 78th General Convention, the use would “continue
25
until the completion of the next comprehensive revision” to the BCP (Resolves 1, 3)
and; b) for the two new trial liturgies, the period of use would begin on the second
Sunday in Advent 2018 and continue until the completion of the next comprehensive
revision to the BCP. (Resolves 2, 3). The text of the liturgies themselves were
“appended to the Report of TFSM.” (Resolve 6). Finally, the third requirement of
Canon II.3.6, namely, that special conditions, such as translations be provided for in
the enabling resolution, was met. The General Convention articulated many
conditions for its use including: directing translations (Resolves 6, 14); requiring
provisions be made for local access where allowed by civil law (Resolve 7); allowing
dissenting bishops to invite other bishops to provide support for local access and
consent for remarriage (Resolves 8, 11); preserving the canonical rights of clergy to
personally choose whether to conduct any marriage (Resolves 7, 9); recommending
the study by SCLM to address specific provisions in the BCP for revision including
the commentary Concerning the Service of Marriage and the proper prefaces for
marriage and the catechism. (Resolve 5). (Joint Exhibits, Exhibit A). In its final
form, Resolution B012, on its face, contained all the necessary elements to ensure
its canonical validity, thus mandating it “shall be in use in every Diocese in the
Church.” Art. X. Thus, Bishop Love’s metaphor that Resolution B012 was like a
truck painted on the outside advertising that it was carrying oranges, when its cargo
26
was something entirely different, is misplaced. The B012 truck was carrying all the
oranges that it was required to carry to be canonically enforceable.
Given the plain language of Resolution B012, this Panel need not go further
in its analysis of whether the language of Resolution B012 is mandatory. However,
for completeness, the Panel addresses Bishop Love’s further claims relative to the
intent of General Convention in the passage of Resolution B012. Bishop Love’s
next argument is that Resolution B012 was merely intended as a permissive
supplement to the BCP and not intended as a proposed revision to the BCP. This
rests upon his claim that B012 was a substitute resolution for Resolution 2018 A085
that was offered by the special Task Force for the Study of Marriage (“TFSM”) and
that, when offered by TFSM, the resolution was meant to be an addition to the BCP
and not a proposed revision to the BCP. Bishop Love argues that Resolution A085
was, thereafter, amended to become the substituted Resolution B012 that contained
express language that changed the use of the word “additions” to language
describing the rites as “supplemental.” It is this change that Bishop Love argues
implies an intent to not revise the BCP. (Bp. Love’s Br. at 3-8). Bishop Love also
asserts that the Convention did not intend Resolution B012 to be a revision to the
BCP in that comments allegedly made by several TFSM members to various public
media sources prior to the final passage of B012 expressed the view that Resolution
A085 was not meant to revise the BCP. (Bishop Love’s Brief at 6-7, n. 2, 3, and 4).
27
Bishop Love’s arguments on both points are unavailing. First, Bishop Love’s
argument about inferring General Convention’s intent from language changes made
to the original Resolution B012 from the version of Resolution A085 as offered by
the special Task Force for the Study of Marriage are of little import where the
original version of Resolution B012 is NOT the same version of B012 that ultimately
passed on the floor of Convention. As Bishop Love admits, the original version of
Resolution B012 was significantly amended prior to its passage. (Bp. Love’s Br. at
7). For the same reason, comments made by TFSM members or others prior to the
passage of Resolution B012 are not relevant where these comments were made prior
to the significantly amended final version of Resolution B012. Moreover, Bishop
Love’s final argument (Bp. Love’s Br. at 4-5) that a long line of legislative history
precludes the consideration of supplemental rites as being canonically authorized by
Article X, lacks significance where this Panel concludes that the explicit language
of Resolution B012 as passed, makes plain its intent to be a proposed revision to the
BCP and not as supplemental rites masquerading as a proposed revision to the BCP.
V. Did Bishop Love’s Refusal to Abide by B012, a Resolution, Violate the Discipline of the Church?
Bishop Love next argues that even though he acknowledges non-compliance
with the intent of Resolution B012, his noncompliance does not constitute a Title IV
violation within the definition of Discipline under Title IV unless the resolution was
an amendment to the Constitution, the Canons, the Rubrics or Ordinal. (Bp. Love’s
28
Br. at 8-12). Bishop Love comes to this conclusion based upon a presentation of
legislative history and through an interpretation of the Court’s decision in the trial
of a Bishop, Stanton v. Righter (1996). The Righter decision was a disciplinary case
centering on whether a bishop’s ordination of a celibate, gay man constituted a
violation of the bishop’s ordinal vows.
Bishop Love’s argument begins with a look at the General Convention
Resolution proposed in 1994, B005, that sought to create a clear process to follow
to avoid uncertainty in determining if a resolution was intended to be canonically
binding and, thus, sought to avoid the danger of subjecting a clergyperson to a
potential disciplinary action based upon a vaguely written resolution. The drafters
of proposed Resolution B005 sought to avoid the outcome by requiring any proposed
resolution intending to create a binding responsibility to expressly state “its intent to
interpret and/or apply any provision of the Constitution or Canons of the Church.”
Resolution 94-B005 is attached in the Supplement to the Cross-Motion of the
Respondent for Summary Judgment and Brief in Support (“Supplement to Love
Br.”) at 058. The proposed resolution failed, but was referred to the Standing
Committee on Constitution and Canons (“SCCC”) for further consideration and for
a report back to the 1997 (72nd) General Convention.7 Thereafter, in deciding the
7 The 1997 Blue Book of the 72nd General Convention can also be located at:.
https://www.episcopalarchives.org/e-archives/gc_reports/reports/1997/bb_1997-
R003.pdf (last accessed 7/30/20).
https://www.episcopalarchives.org/e-archives/gc_reports/reports/1997/bb_1997-R003.pdfhttps://www.episcopalarchives.org/e-archives/gc_reports/reports/1997/bb_1997-R003.pdf
29
Righter case in 1996, the Disciplinary Court was confronted with the question that
the proponents of Resolution 94-B005 sought to eliminate: whether a General
Convention resolution was binding for disciplinary purposes where its language
made a recommendation rather than stating a clear requirement: “we believe it is not
appropriate for this Church to ordain a practicing homosexual or any person who is
engaged in heterosexual relationships outside of marriage.” Righter case,
Supplement to Bp. Love’s Br. at 078. The Court, in concluding the resolution
language did “not set forth a clear constraint which allowed for canonical
disciplinary action,” found the resolution was permissive, stating “[t]he Church may
forbid what has been done here, but not by a recommendatory resolution.” Id.
Thereafter, in 1997, Bishop Love correctly notes that the SCCC, in considering
Resolution B005 and influenced by the Righter case, sought to address the concern
about providing more clarity about when resolutions are binding for disciplinary
action. Expressing concerns about the litmus test proposed by the drafters of B005
at the 71st Convention (1994), the Committee decided against recommending 94-
B005 for passage at the 72nd Convention. One of the expressed concerns was that by
the mere use of a few words, namely, stating the resolution was interpreting or
applying canon law, the result would be a resolution that would be afforded the exact
same status as a canonical amendment. Such a process was disconcerting to the
Committee in that the resolution might not be afforded the same “seriousness” or
30
“proper procedure and consideration” as a canonical amendment. Likewise, the
1997, SCCC further expressed a concern that requiring “magic words” to dictate
such disparate consequences in treatment would “radically” change the
consideration of resolutions. (1997 Blue Book at 19-20) (Supplement to Bp. Love’s
Br. at 103) Instead, the 1997 SCCC sought to accomplish at least one of the stated
objectives of the proposed 94-B005 by providing guidance as to what areas of
Discipline and Doctrine would run afoul of Title IV by providing definitions for
Discipline and Doctrine. Bishop Love, therefore, argues that Discipline under IV.2
only covers violations of the Canons or Constitution of the Church and since
Resolution B012 is not an amendment of a Canon or the Constitution, it cannot be
the source of a disciplinary violation under Title IV.
Bishop Love’s argument on its face is logical. If this Panel agreed with
Bishop Love’s argument that Resolution B012 was “permissive,” it might reach a
different conclusion. Nonetheless, Bishop Love fails to take into consideration that
the language of Article X and Canon II.3.6, when properly invoked in a resolution,
gives the resolution canonical import as expressly dictated by Article X. Article X
of the Constitution mandates that a proposed revision to the Book of Common Prayer
be in use in all Dioceses:
The Book of Common Prayer, as now established or hereafter amended
by the authority of this Church shall be in use in all the Diocese of this
Church.
31
Article X of the Constitution. Discipline for Title IV purposes is to be found in “the
Constitution, the Canons and the Rubrics and the ordinal of the Book of Common
Prayer.” As such, Resolution B012’s invocation of Article X of the Constitution and
Canon II.3.6, plainly gives the resolution canonical weight. Bishop Love’s refusal
to follow Resolution B012 was, therefore, a violation of the Constitution and Canons
of the Church.
VI. Did Bishop Love’s Pastoral Direction Violate the Discipline and Doctrine of the Church?
A. Is the Language in the Commentary Concerning the Service in the
BCP and the Catechism in the BCP an impediment to B012 being
afforded Canonical Authority?
Bishop Love argues that he complied with the Doctrine and Discipline of the
Church where language in one of the rubrics in the BCP, the commentary
Concerning the Service refers to marriage as “between a man and a woman”8 and
where the Catechism in the BCP makes reference to the rite of Holy Matrimony as
“marriage, in which the man and woman enter into a life-long commitment.9”
(Emphasis added). Hence, absent further revisions to the BCP, he argues, Resolution
B012 cannot be deemed complete in its intent to mandate compliance. (Bp. Love’s
Br. at 13-15).
8 BCP at 422. 9 BCP at 861.
32
The commentary Concerning the Service in the BCP provides: “Christian
marriage is a solemn and public covenant between a man and a woman in the
presence of God.” BCP at 422. (Emphasis added). The Catechism also provides the
following colloquy:
Q: What is Holy Matrimony?
A. Holy Matrimony is Christian marriage, in which the woman and man enter into a life-long union, make their vows before God and the
Church, and receive the grace and blessing of God to help them fulfill
their vows.
(BCP at 861) (Emphasis added).
Bishop Love’s argument fails in several respects. First, the provision in the
commentary Concerning the Service only attaches to the specific rite to which the
rubric applies. Here, the prefatory language in paragraph one of the BCP at 422 only
applies to the Marriage rites that start at 423. It does not attach to the four liturgical
rites that were authorized by Resolution B012 as revisions to the BCP. See, e.g,
separate rubrics for Holy Eucharist Rite One and Rite Two (BCP 322, 354); Burial
of the Dead, Rite One and Rite Two (BCP 468, 490); Celebration of a Marriage and
Order of a Marriage (BCP 422, 435) and the Daily Offices, Rite One and Rite Two
(36, 74). This demonstrates that rubrics attach to specific rites.
Second, consistent with this structure within the BCP, the Catechism, is
prefaced by its own rubric that describes the Catechism as an “outline for
33
instruction” that is meant to be “commentary on the creeds” and is not “meant to be
a complete statement of belief and practice.” BCP at 844.
Third, Canon 1.18.1 was amended in 2015 to allow for marriage of same-sex
couples:
Every member of the Clergy of this Church shall conform to the laws
of the State governing the creation of the civil status of marriage, and
also these canons concerning the solemnization of marriage. Members
of the Clergy may solemnize a marriage using any of the liturgical
forms authorized by this Church.
(Emphasis added).
As explained more fully in Point VI.D, herein, Resolution B012 made this Canon
mandatory as it related to same-sex liturgies being offered in every Diocese. Hence,
the Rubrics should be read to be consistent with canon law.
Finally, Canon 1.17.5 expressly provides that “[n]o one shall be denied rights,
status or access to an equal place in the life, worship, governance, or employment in
this Church because of race, color, ethnic origin, national origin, marital or family
status (including pregnancy or child care plans), sex, sexual orientation, gender
identity and expression, disabilities or age, except as otherwise specified by
Canons.” (Emphasis added). Bishop Love’s refusal to offer access to the prescribed
marriage rites as authorized by Canon 1.18 and Resolution B012 violates the intent
of Canon 1.17.5. Resolution B012 should be interpreted in a way to effectuate the
intent of this canonical provision. As such, the language in the commentary
34
Concerning the Service and in the Catechism should be read in a way to limit their
application only those Marriage rites offered to cisgender couples.
B. Does Compliance with Resolution B012 violate the Rubrics of the Church?
Bishop Love next argues that compliance with Resolution B012 would force
a Cleric to violate Canon IV.4.1(b)10 and Canon III.9.6(a),11 both of which, according
to Bp. Love, require clergy to abide by the Rubrics of the Church. Bishop Love
further argues that Canon IV.2’s definition of Discipline also includes a clergy’s
obligation to abide by the Rubrics of the Church.12 However, for the same reason as
stated in Point VI.A, herein, this Panel concludes that Resolution B012 does not
conflict with the Rubrics of the BCP.
C. Does Compliance with B012 violate the Doctrine of the Church?
Parallel to Bishop Love’s argument that compliance with Resolution B012
would improperly force a cleric to violate the Rubrics of the Church (a separate Title
IV violation), Bishop Love argues that Resolution B012 lacks canonical import
when the General Convention left unchanged provisions in the BCP that do not
10 Canon IV.4.1(b) requires that all clergy “conform to the Rubrics of the Book of
Common Prayer;” 11 Canon III.9.6(a)(1) makes a rector’s authority over worship “subject to the Rubrics of the Book of Common Prayer, the Constitution and Canons of this Church,
and the pastoral direction of the Bishop.” 12 Canon IV.2 reads in part: “Discipline of the Church shall be found in the
Constitution, the Canons and the Rubrics and the Ordinal of the Book of Common
Prayer.”
35
replace current Doctrine of the Church. Canon IV.2 defines the Doctrine of the
Church as:
the basic and essential teachings of the Church and is to be found in the
Canon of Holy Scripture as understood in the Apostles and Nicene
Creeds and in the sacramental rites, the Ordinal and Catechism of the
Book of Common Prayer.
(IV.2) Bishop Love argues that paragraph one of the preface to the commentary
Concerning the Service in the BCP and the Catechism in the BCP at 861 that refers
to marriage as between a “man and a woman” has not been amended and thus
requires adherence as an authoritative source of Doctrine in the Church in
accordance with Canon IV.2. TEC responds that Bishop Love’s argument fails in
two ways. First, TEC argues the Righter decision effectively eliminated the Rite of
Marriage from the Doctrine of the Church (TEC’s Reply Br. at 9-11).13 Second, it
argues that canonical changes to Canon I.18 that authorized same-sex marriage and
Resolution 2015 B045 allowing for the provisional use of same-sex rites, had the
effect of modernizing Doctrine to include same-sex marriage. Id. 11-12. TEC’s
first argument fails. While the Righter case can always provide guidance to this
13 The Church asserts that:
. . .the Righter Court’s characterization of Church’s teachings on
marriage as within the scope of ‘doctrinal teaching’ rather than Core
Doctrine should apply in this Title IV matter. The opinion of the Righter
Court stands as the most authoritative expression on issues of Doctrine
under Title IV.
Id. at 18.
36
Panel, hearing panels are not bound by any prior decision of a former Title IV panel
or Ecclesiastical Court. This is because the polity of the Church is structured so that
our primary source of canon law is legislative action. Further, TEC fails to mention
that the General Convention in 1997, in an effort to clarify some of the rulings in the
Righter case, provided for a precise definition of the Doctrine of the Church. (Canon
IV.2). Thus, TEC and this Panel are bound by the definition provided by IV.2. This
definition of Doctrine in IV.2 would plainly include any marriage rite authorized by
General Convention as a revision to the BCP. However, what the passage of
Resolution B012 accomplished was not altering the commentary Concerning the
Service in the BCP at 422 or in the Catechism at 861, but, instead, it creates multiple,
separate canonical marriage rites for same-sex couples that are not restricted by the
commentary Concerning the Service. Nor are the rites constrained by a Catechism
that expressly states it is meant to be an “outline” of instruction and not a “complete
statement of belief and practice.” BCP at 844. Hence, while the General Convention,
in its 5th Resolve of Resolution B012, directed the Standing Committee on Liturgy
and Music (“SCLM”) to consider amendments to the marriage prefaces and the
Catechism in the future as part of the comprehensive revision of the BCP, the
absence of such amendments by the General Convention did not invalidate the
mandate of Resolution B012. This is evinced by the plain language of the Resolution
itself as discussed in Section IV herein, but also, because the prefaces only attach to
37
the specific rites to which they refer and the Catechism is meant as an outline for
instruction and not a complete recitation of “belief and practice.”
D. Did Bishop Love violate Canon I.18, and if so, did TEC prove that his Pastoral Direction enforcing the Albany canons was prohibited
by Title IV?
Bishop Love argues that his Pastoral Direction mandating his clergy abide by
the Albany Canon prohibiting same-sex marriage did not run afoul of his ordinal
vows where Canon I.18 by its express terms did not mandate that bishops or priests
conduct such marriages. Canon I.18 provides:
Every member of the Clergy of this Church shall conform to the laws
of the State governing the creation of civil status of marriage, and also
these canons concerning the solemnization of marriage. Members of
the Clergy may solemnize a marriage using any of the liturgical forms
authorized by this Church.
(Emphasis added).
Bishop Love asserts that this Canon, when read alongside Resolution 2015
B054 that made use of such rites subject to the approval of the Diocesan Bishop,14
was to render compliance with Canon I.18 as permissive. Bishop Love further
argues that had the drafters sought to make Resolution B012 canonically binding,
they would have provided the “magic words,” denoting that the resolution was a
14 2015-B054 provides in pertinent part: “Trial use is only to be available under the
direction and with the permission of the Diocesan Bishop.” (Supplement to Bp.
Love’s Br. at 117)
38
proposed revision to the BCP along with amending the preface to the Celebration
and Blessing of a Marriage at 422 of the BCP and amending the Catechism
at 861. 15
Bishop Love’s arguments here all rest on his previous assertion that
Resolution B012 was not constituted to have canonical import. As this Panel has
ruled that Resolution B012 was canonical, Bishop Love’s argument fails here as
well. Resolution B012 mandated that bishops and clergy provide for same-sex
couples to have access to marriage rites locally within their community or
congregation and specifically provided the mechanism for this to happen while
providing a process for a bishop who was theologically opposed to the mandate to
choose another bishop to attend to the pastoral needs of the same-sex couple.
Resolution B012, thus, rendered I.18 as mandatory for bishops and clergy.
Moreover, where diocesan canons and TEC canons are in conflict, the Albany
canons must accede to the authority of the General Convention canons.16 As such,
Bishop Love, as a matter of canon law, violated Canon I.18.
15 Bishop Love also asserts that Canon IV.3.1(c) requires conformity to a cleric’s
diocesan canons, so that where the Albany canon is consistent with the permissive
nature of Resolution B012, there can be no claim that the Diocesan canons violate
B012 or Canon I.18. (Bp. Love’s Br. at 20-22) 16 TEC in its Brief at 14 outlines the hierarchical nature of our polity and the
Accession clause that requires diocesan canons accede to the authority of the TEC
canons:
Article V of the Constitution embeds this hierarchical structure into the
canonical relationship between the General Convention and Diocese in
39
E. Is B012 Unenforceable in that it seeks to impermissibly restrict the jurisdiction of an Episcopal Bishop?
Respondent argues that Resolution B012 is extra-canonical in that it attempts
to mandate the relinquishment of episcopal authority by the diocesan bishop in
violation of Article II.3 of the Constitution and Canon III.12.3(e). Article II.3
provides that:
A Bishop shall confine the exercise of such office to the Diocese in
which elected, unless requested to perform episcopal acts in another
Diocese by the Ecclesiastical Authority thereof, or unless authorized by
the House of Bishops, or by the President Bishop by its direction, to act
temporarily in case of need within any territory not yet organized into
the Diocese of this Church.
Canon III.12.3(e) provides:
No Bishop shall perform episcopal acts or officiate by preaching,
ministering the Sacraments, or holding any public service in a Diocese
other than that in which the Bishop is canonically resident, without
permission or a license to perform occasional public services from the
Ecclesiastical Authority of the Diocese in which the Bishop desires to
officiate or perform episcopal acts.
(Emphasis added).
union with the General Convention. Specifically, Article V.1 of the
Constitution requires that the constitution of each diocese in union with
the General Convention include an “unqualified accession to the
Constitution and Canons of this Church.” The words used in diocesan
constitutions to effectuate this accession to the authority of the
Constitution and Canons of the General Convention varies from
diocese to diocese. Article V of the Constitution of the Diocese of
Albany incorporates the required accession to the Constitution and
Canons by requiring that the Canons of the Diocese of Albany be
consistent with the Constitution and Canons.
40
TEC argues that Resolution B012 does not limit the constitutional and
canonical authority assigned to a diocesan bishop in that it is narrow in scope and is
limited to an invited bishop providing pastoral support only and does not constitute
the types of episcopal acts as envisioned by Constitution Article II.3. (TEC Reply
Br. at 19-20) Moreover, TEC argues that the invitation of a bishop to perform
pastoral support under B012 is more akin to a diocesan bishop’s act in permitting or
licensing another bishop to perform occasional services within the diocese. Canon
III.12.3(e).
TEC correctly states that Resolution B012 does not impinge on a diocesan
bishop’s authority. The resolve implicating the utilization of another bishop only
arises in the limited circumstance where a bishop is theologically opposed to the
mandate of Resolution B012. The use of another bishop under these circumstances
is a choice that is open to each bishop. Where the diocesan bishop elects to exercise
this option, it is for an extremely limited function that is non-jurisdictional and which
is the equivalent of permitting or licensing another bishop to perform a service
within the diocese. The bishop so invited is there merely to provide pastoral support
to the couple and, when necessary and where the Bishop Diocesan deems
appropriate, to consider consent to previously married individuals seeking to be
married pursuant to the same-sex marriage rites.
41
VII. Does Respondent’s Pastoral Direction Violate the Worship of the Church?
Bishop Love argues that he conformed to the Worship of the Church. He
states that while the term, “Worship” is not expressly defined in Canon IV.2, its
meaning can be deduced from Article X and Canon II.4. From those sources, Bishop
Love’s definition of Worship includes the Book of Common Prayer, proposed
revisions to the BCP and “special forms of worship.” (Bp. Love’s Br. at 24-27).17
TEC asserts the term, “Worship” must include:
[t]he canonical authorization of same-sex marriage and General
Convention’s promulgation of the Authorized Marriage Rites pursuant
to canonically-based authorizing legislation, together with the
availability of these rites in all other domestic dioceses of the Church,
establish that the Authorized Marriage Rites constitute a significant
element of the Worship of The Episcopal Church.
TEC’s Br. at 17. (Emphasis added)
Thus, both parties agree that if Resolution B012 was properly constituted as a
canonical proposed revision to the BCP, it constitutes the Worship of the Church.
The Panel agrees that the BCP is one source of worship within the Church. It need
not define all sources of Worship of the Church. As the Panel concludes that
Resolution B012 was properly passed as a proposed revision to the BCP, it comes
within the “Worship” of the Church and that Bishop Love’s actions in defying
17 Likewise, this Panel rejects Bishop Love’s invitation to this Panel to “write some
Canon Law” (Hearing Tr. 51:13-16). It is not the job of a Hearing Panel to “write”
Canon Law as that is primarily within the purview of the General Convention.
42
Resolution B012 constituted a violation of his vows to adhere to the Worship of the
Church.
CONCLUSION
For the foregoing reasons, Bishop’s Love’s actions in issuing a Pastoral
Direction to his clergy that they refrain from performing same-sex marriages
violated the Discipline and Worship of the Church as Bishop Love promised in his
ordinal vows. His actions, therefore, constitute a breach of Canon IV.3.2(a). TEC’s
Motion for Summary Judgment is granted. Respondent’s Cross-Motion for
Summary Judgment is denied. The Panel will proceed to schedule dates for an
opportunity for both parties to be heard on proposed terms for an Order pursuant to
Canon IV.13.14 and IV.14.7.
W. Nicholas Knisely
The Hearing Panel
By: The Right Reverend W. Nicholas Knisely,
President
The Right Reverend Herman Hollerith, IV
The Right Reverend Jennifer Brooke-Davidson
Melissa Perrin, Psy.D.
The Reverend Erik Larsen
Dated: October 2, 2020